DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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------------------------- )       ISCR Case No. 07-07219
SSN: ----------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro se
February 11, 2008
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant certified his Electronic Questionnaires for Investigations Processing (e-
QIP), on July 11, 2006.  On September 18, 2007, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns
under Guidelines J, H and E for Applicant.  The action was taken under Executive Order
10865, Safeguarding Classified Information within Industry (February 20, 1960), as
amended; Department of Defense Directive 5220.6, Defense Industrial Personnel
Security Clearance Review Program (January 2, 1992), as amended (Directive); and the
revised adjudicative guidelines (AG) promulgated by the President on December 29,
2005, and effective within the Department of Defense for SORs issued after September
1, 2006. 
 
Applicant answered the SOR in writing on October 8, 2007, and requested an
Administrative Determination by an Administrative Judge.  Department Counsel issued
a File of Relevant Material (FORM) on October 25, 2007.  The Applicant did not
respond to the FORM.  Based upon a review of the case file, pleadings, and exhibits,
eligibility for access to classified information is denied.
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Findings of Fact
In his Answer to the SOR, dated June 25, 2007, Applicant admitted all of the
factual allegations in Paragraphs 1, 2 and 3 of the SOR, with no explanations.
Guideline J - Criminal Conduct
1.a. and 1.b.  In August of 1999, the Applicant was charged with, and
subsequently found guilty of, Possession of Marijuana and Drug Paraphenilia
(Government Exhibit (GX) 5 at page 9 and GX 6 at page 9).  As a result of this
conviction, the Applicant was fined $500 (Id).  In August of 2005, a bench warrant was
for Applicant’s arrest for failure to pay his fine (GX 5 at page 9).  This warrant appears
to be still outstanding (Id).
1.c.  In November of 1999, the Applicant was charged with, and subsequently
pled guilty to, Tampering with Evidence (GX 5 at pages 9~10, and GX 6 at pages 9~10).
The Applicant paid a fine and court costs totaling about $300 (Id).
Guideline H - Drug Involvement
2.a.~2.c.  The Applicant “first used marijuana as a freshman in high school
around 09/93" (GX 5 at page 10).  During his high school years he smoked the drug
“twice weekly” (Id).  “After graduation from high school in 06/1996, and up to 01/2001, . .
. he was using marijuana on a weekly basis” (GX 5 at page 10~11).  Until “12/2002
[when the Applicant last used marijuana] . . . [he] was smoking marijuana once per
month” (GX 5 at page 11).  During the period of his marijuana abused, Applicant
purchased the illegal substance about 100 times, spending “$20.00 per occasion” (Id).
Guideline E - Personal Conduct
3.a.  In answering “Section 24: Your Use of Illegal Drugs and Drug Activity” on
his July 11, 2006 e-QIP, the Applicant disclosed only a one time use of marijuana in
August of 1999 (GX 4 at pages 29~30).  The Applicant gives no explanation for this
obvious falsehood.
Policies
When evaluating an Applicant’s suitability for a security clearance, the
Administrative Judge must consider the revised adjudicative guidelines (AG).  In
addition to brief introductory explanations for each guideline, the adjudicative guidelines
list potentially disqualifying conditions and mitigating conditions, which are useful in
evaluating an Applicant’s eligibility for access to classified information.
These guidelines are not inflexible rules of law.  Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process.  The Administrative Judge’s over-arching
adjudicative goal is a fair, impartial and common sense decision.  According to AG
Paragraph 2(c), the entire process is a conscientious scrutiny of a number of variables
known as the “whole person concept.”  The Administrative Judge must consider all
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available, reliable information about the person, past and present, favorable and
unfavorable, in making a decision.
The protection of the national security is the paramount consideration.  AG
Paragraph 2(b) requires that “[a]ny doubt concerning personnel being considered for
access to classified information will be resolved in favor of national security.”  In
reaching this decision, I have drawn only those conclusions that are reasonable, logical
and based on the evidence contained in the record.  Likewise, I have avoided drawing
inferences grounded on mere speculation or conjecture.
Under Directive Paragraph E3.1.14, the Government must present evidence to
establish controverted facts alleged in the SOR.  Under Directive Paragraph E3.1.15,
the Applicant is responsible “to rebut, explain, extenuate, or mitigate facts admitted by
applicant or proven by Department Counsel. . . .”  The Applicant has the ultimate burden
of persuasion as to obtaining a favorable security decision. 
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence.  This
relationship transcends normal duty hours and endures throughout off-duty hours.  The
Government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information.  Decisions include, by necessity, consideration
of the possible risk the Applicant may deliberately or inadvertently fail to protect or
safeguard classified information.  Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
 
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned.”  See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).
Analysis
Guideline J - Criminal Conduct
The security concern relating to the guideline for Criminal Conduct is set out in
AG Paragraph 30:
Criminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness.  By its very nature, it calls into question a person’s ability
or willingness to comply with laws, rules and regulations.
The guideline notes several conditions that could raise security concerns.  Under
AG Subparagraph 31(a), “a single serious crime or multiple lesser offenses@ is
potentially disqualifying.  Similarly under AG Subparagraph 31(c), “allegations or
admissions of criminal conduct, regardless of whether the person was formally
prosecuted or convicted” may raise security concerns.  I can find no countervailing
mitigating conditions that are applicable in Applicant’s case.  Although his last conviction
was in November of 1999; from all appearances, he still has an outstanding warrant for
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his arrest, as he has yet to pay a $500 fine as a result of his prior August 1999
conviction for drug possession.
Guideline H - Drug Involvement
The security concern relating to the guideline for Drug Involvement is set out in
AG Paragraph 24:
Use of an illegal drug or misuse of a prescription drug can raise questions
about an individual’s reliability and trustworthiness, both because it may
impair judgment and because it raises questions about a person’s ability
or willingness to comply with laws, rules, and regulations.
The guideline also notes several conditions that could raise security concerns.
Under AG Subparagraph 25(a), “any drug abuse” may be disqualifying.  As is the
“purchase” of illegal drugs under Subparagraph 25(c).  Here the Applicant used
marijuana fairly extensively for nearly ten years from September of 1993 to December
of 2002.  This is countered, however, by the mitigating condition found in Subparagraph
26(a).  The Applicant’s Drug Involvement “happened so long ago [more than five years
ago] . . . that it is unlikely to recur or does not cast doubt on the individual’s current
reliability, trustworthiness, or good judgment.”
Guideline E - Personal Conduct
The security concern relating to the guideline for Personal Conduct is set out in
AG Paragraph 15:
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions
about an individual’s reliability, trustworthiness and ability to protect
classified information.
The guideline notes several conditions that could raise security concerns.  Under
AG Subparagraph 16(a), “deliberate omission, concealment, or falsification of relevant
facts from any personnel security questionnaire . . . or similar form used to conduct
investigations . . .”  Here, the Applicant falsified his e-QIP as it concerns his past Drug
Involvement.  In answer to the SOR, he gives no explanation for this clear falsification.  I
can find no countervailing mitigating conditions that are applicable.
Whole Person Concept
Under the whole person concept, the Administrative Judge must evaluate an
Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s
conduct and all the circumstances.  The Administrative Judge should consider the nine
adjudicative process factors listed at AG Subparagraph 2(a): “(1) the nature, extent, and
seriousness of the conduct; (2) the circumstances surrounding the conduct, to include
knowledgeable participation; (3) the frequency and recency of the conduct; (4) the
individual’s age and maturity at the time of the conduct; (5) extent to which participation
is voluntary; (6) the presence or absence of rehabilitation and other permanent
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behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure,
coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.”
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security
clearance must be an overall commonsense judgment based upon careful consideration
of the guidelines and the whole person concept.
Here, the Applicant was clearly less than candid with the Government regarding
his past drug abuse.  Furthermore, he has an outstanding warrant for his arrest.
Overall, the record evidence leaves me with questions or doubts as to Applicant’s
eligibility and suitability for a security clearance.  For all these reasons, Although I find
for the Applicant as to his past Drug Involvement, I conclude Applicant has not mitigated
the security concerns arising from his Criminal Conduct and Personal Conduct. 
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline J: AGAINST THE APPLICANT
Subparagraph 1.a: Against the Applicant
Subparagraph 1.b: Against the Applicant
Subparagraph 1.c: Against the Applicant
Paragraph 2, Guideline H: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Paragraph 3, Guideline E: AGAINST THE APPLICANT
Subparagraph 1.a: Against the Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
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RICHARD A. CEFOLA
Administrative Judge